A colleague of mine, T. Ryan Phillips, emailed me an October 1, 2012 Tennessee Supreme Court opinion in the case of Hodge v. Craig, 382 S.W.3d 325 (TN. 2012). That opinion approves a cause of action for paternity fraud within that state. With the rise of paternity testing, this cause of action may become more common and may eventually come to South Carolina.

In the days before genetic testing there was a popular bit of folk wisdom, “mama’s baby daddy’s maybe.” To deal with the inability to determine paternity, the law created very rigid rules. Absent one narrow exception, children born to a married woman were children of her husband. In contrast, children born out of wedlock had no legal father. A husband could not disclaim paternity of a child unless he could prove “non access” during the potential time period of conception. Basically soldiers and sailors who went on multi-year journeys to return to a wife bearing an infant could disclaim paternity. Mere cuckolds could not. However children born out of wedlock had no legal father and, if the child was to be legitimated, the parents needed to marry (an angry maternal grandfather and a shotgun was often involved).

Approximately 50 years ago the rules loosened and then changed completely on paternity of children born out of wedlock. Blood tests could potentially rule out paternity in some contested cases but often paternity was determined by the judge looking at the child, the mother, and the putative father, and determining “yeah, it looks like him” or “no, I don’t see the resemblance.” For a time, many a non-biological father was paying child support based on a judge’s eyeballs. With the rise of DNA testing twenty years ago, paternity testing is much more certain and the law has slowly lifted the presumption that children born in wedlock are children of the husband. Yet babies and putative fathers are not routinely tested at the time of the child’s birth and many a man accepts paternity based upon his trust in the mother.

This is a trust that is sometimes misplaced, as it was in the Hodge case. Ms. Hodge’s behavior, which the opinion describes in detail, was a very unsympathetic: lying repeatedly to Craig about paternity; moving from boyfriend to boyfriend; telling the child his true paternity when he was an older teen in an apparent, and successful, attempt to undermine the child’s relationship with Craig.

Yet the law has typically been reluctant to allow causes of action for paternity fraud, holding that a man who has questions about the paternity of a child needed to make the challenge before there is a court order determining him to be the father. This bright-line requirement ignores the dynamic of most human romantic/sexual relationships: asking one’s girlfriend/wife for paternity testing of a newborn is to accuse one’s lover of being untrustworthy and unchaste. Only where the parties are no longer romantically involved is a man likely to demand paternity testing before acknowledging paternity. Women who intend to behave deceitfully and fraudulently are undoubtedly aware of this dynamic, so there is an incentive to deceive a dutiful boyfriend or husband about the child’s true paternity. This is what Ms. Hodge did.

One often hears the argument that paternity fraud claims should not be allowed because it “harms” the child. This argument has always struck me as absurd for two reasons. First the harm to the child was caused by the mother’s deceit regarding paternity. Preventing the legal-but-not-biological father from remedying the harm caused by this deceit seems inequitable. Further, child support is zero-sum money: simply shifting funds from one person to another. A child may be worse off if his or her mother has to pay back funds she improperly received by committing paternity fraud but the other option is to make an innocent party bear these costs. I am unaware of other areas of the law in which we expect the fraudulent to get away with fleecing the innocent because the fraudulent have children

Paternity fraud cases have never been allowed–and shouldn’t be allowed–where a mother informs a man that the child is not biologically his or acknowledges she lacks certainty regarding the child’s paternity but he chooses to acknowledge paternity anyway. However where a mother actively deceives a man regarding the paternity of a child, I see no problem forcing the woman, and not the man, to bear the costs of the deceit.

The trial court awarded Mr. Craig $23,030.24, “representing the total child support paid by Chadwick Bradley Craig,” $2,214.20, “representing medical expenses and insurance premiums paid by Chadwick Bradley Craig,” and $1,181.75 “for TRH Health Plans.” The court also awarded Mr. Craig $100,000.00 “for the emotional distress suffered” and $8,451.71 in attorney’s fees. Mr. Craig failed to perfect his appeal on the issues of attorney’s fees and emotional distress, and thus the Supreme Court opinion only requires Ms. Hodge to pay Mr. Craig $26,426.19. However, had he properly perfected his appeal on all issues, he might have been entitled to $134,887.90. If South Carolina ever authorizes paternity fraud cases it might become a very lucrative sideline for family law attorneys.